32A-4-29.  Termination procedure.

Amendment Notes. 

The 2005 amendment, effective June 17, 2005, in Subsection A, substituted “by a party to the proceeding” for the former last sentence inclusive of Paragraphs A(1) through (3), which listed entities eligible to initiate a neglect of abuse proceeding; in Subsection B, deleted “shall be signed, verified by the moving party and filed with the court. The motion” following “parental rights”; in Paragraph B(3) and Subsection E, inserted “legal”; deleted former Subsection C, which pertained to a court determination of whether a parent, who has not previously been a party to the proceeding, should become a party based on whether the parent has established a protected liberty interest in his relationship with the child, and redesignated former Subsection D as Subsection C; in Subsection C, substituted “Children’s Court Rules for the service of motions” for “Rules of Civil Procedure for the District Courts for the service of motions in a civil action in this state”; deleted former Subsections E through G, which pertained to services of individuals when identity is not known, motions for termination of parental rights, and assurances by the court that a child will be represented in all parental rights termination proceedings by a guardian ad litem, respectively, and redesignated the remaining subsections accordingly; and in Paragraph G(3), substituted “fourteen years of age or older” for “thirteen years of age or older”.

The 2009 amendment, effective July 1, 2009, added the last two sentences in (D); added (G)(9); added (M); and made related and stylistic changes.

Applicability. 

Laws 2009, ch. 239, § 71 makes the provisions of this act applicable to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released.

Notes to Decisions

      Generally.

New Mexico Abuse and Neglect Act explicitly provides for terminating parental rights, but not kinship guardianships. Therefore, a district court erred by dismissing a kinship guardian from a case where her status had not yet been terminated. State ex rel. Children, Youth & Families Dep't v. Djamila B., 2014-NMCA-045, 322 P.3d 444, 2014 N.M. App. LEXIS 11 (N.M. Ct. App.), aff'd on other grounds, 2015-NMSC-003, 342 P.3d 698, 2014 N.M. LEXIS 393 (N.M. 2014).

Under 32A-4-29F NMSA 1978, an indigent mother is entitled to assistance of counsel at all stages of a proceeding to terminate the mother’s parental rights, including appeals if, in the court’s discretion, the interests of justice require appointment of counsel. State ex rel. Children, Youth & Families Dep't v. Alice P. (In re Jeramy P.), 1999-NMCA-098, 127 N.M. 664, 986 P.2d 460, 1998 N.M. App. LEXIS 199 (N.M. Ct. App. 1998), cert. denied, 127 N.M. 391, 981 P.2d 1209, 1999 N.M. LEXIS 192 (N.M. 1999).

Termination of parental rights pursuant to a court judgment divests the parent of all legal rights and privileges with respect to the child in question, in accordance with 32A-4-29K NMSA 1978, 32A-4-29L NMSA 1978, and 32A-4-29M NMSA 1978. State ex rel. Children, Youth & Families Dep't v. T.J., 1997-NMCA-021, 123 N.M. 99, 934 P.2d 293, 1997 N.M. App. LEXIS 7 (N.M. Ct. App. 1997).

      Active efforts.

Proper standard of proof for determinations of active efforts under the Indian Child Welfare Act is the clear and convincing standard, which is applicable to the underlying termination of parental rights proceedings. State ex rel. Children, Youth & Families Dep't v. Yodell B., 2016-NMCA-029, 367 P.3d 881, 2015 N.M. App. LEXIS 133 (N.M. Ct. App. 2015).

Department met with the father to create a treatment plan and referred him to one parenting class, but did little else to assist him in implementing the plan and instead shouldered the father with the burden of locating and obtaining services and ensuring the service providers were communicating with the department; the evidence was insufficient to show that the Department complied with the active efforts requirements of the Indian Child Welfare Act, and because a showing of active efforts is a mandatory predicate to the termination of parental rights under the Act, the termination order was reversed. State ex rel. Children, Youth & Families Dep't v. Yodell B., 2016-NMCA-029, 367 P.3d 881, 2015 N.M. App. LEXIS 133 (N.M. Ct. App. 2015).

      Agency reports.

      Applicable rules.

In an action in which the trial court terminated a mother’s parental rights to her 11-year-old daughter, the trial court had subject matter jurisdiction, pursuant to former  32-1-55B NMSA 1978, because a series of petitions and amended petitions were filed by the Human Services Department. The Rules of Civil Procedure for the District Courts, Rules 1-001 to 1-102 NMRA applied to such proceedings, rather than the Children’s Code, former 32-1-1 to 32-1-55 NMSA 1978, and the Children’s Court Rules, Rule 10-101 to 10-311 NMRA; therefore, the trial court did not abuse its discretion in allowing the Department to amend its pleadings, pursuant to Rule 1-015(A) NMRA, because the mother, who was aware of the nature of the proceedings and the proposed amendments, was not prejudiced by the amendment. In re Laurie R., 1988-NMCA-055, 107 N.M. 529, 760 P.2d 1295, 1988 N.M. App. LEXIS 131 (N.M. Ct. App. 1988).

      Child support.

      Children.

Mother’s due process rights were not violated when a district court denied a motion to continue a termination of parental rights proceeding; the district court attempted to ensure the mother’s participation in the proceedings, it was not in the best interest of the minor children to continue the proceedings indefinitely, and there was clear and convincing evidence to support the termination. State ex rel. Children, Youth & Families Dep't v. Mafin M. (In re Chance M.), 2003-NMSC-015, 133 N.M. 827, 70 P.3d 1266, 2003 N.M. LEXIS 172 (N.M. 2003).

Because the Children’s Court erred in not ascertaining, as required by 32A-5-21A(5) and (6) NMSA 1978, whether a mother voluntarily, knowingly, and intelligently waived her right to contest a proposed termination of her parental rights, and because the use by the Children, Youth, and Families Department (New Mexico) of a proffer of evidence was an improper means of meeting its burden of establishing grounds for termination by clear and convincing proof, 32A-4-28A and B, and 32A-4-29J NMSA 1978, the termination of the mother’s parental rights was reversed and remanded. State ex rel. Children, Youth & Families Dep't v. Stella P. (In re Diamond-Jerome P.), 1999-NMCA-100, 127 N.M. 699, 986 P.2d 495, 1999 N.M. App. LEXIS 70 (N.M. Ct. App. 1999).

A father who was incarcerated for sexually abusing his two daughters did not show ineffective assistance despite his claims that counsel should have had the girls independently examined by experts, where his counsel’s decisions were reasonable tactical decisions, and where the father had stipulated in an earlier abuse and neglect proceeding that he had sexually abused his daughters. In re Termination of Parental Rights of James W.H., 1993-NMCA-028, 115 N.M. 256, 849 P.2d 1079, 1993 N.M. App. LEXIS 22 (N.M. Ct. App.), cert. denied, 115 N.M. 545, 854 P.2d 872, 1993 N.M. LEXIS 179 (N.M. 1993).

Right of a parent to counsel at a proceeding for termination of parental rights includes a right to competent counsel. In re Termination of Parental Rights of James W.H., 1993-NMCA-028, 115 N.M. 256, 849 P.2d 1079, 1993 N.M. App. LEXIS 22 (N.M. Ct. App.), cert. denied, 115 N.M. 545, 854 P.2d 872, 1993 N.M. LEXIS 179 (N.M. 1993).

Appeals court upheld decision of a trial court judge who balanced the best interests of the minor children and the policy of protecting parental rights in denying maternal grandparents’ adoption petition since they had prevented parent-child contact; former 40-7-4K, 1953 Comp. (now 32A-4-29L and 32A-5-16H NMSA 1978) provided that statutory requisites for termination of parental rights had to be proven by clear and convincing evidence but also required that courts balance the best interests of the children while being sensitive to protecting the parental rights of parents. In re Adoption of Doe, 1984-NMCA-005, 101 N.M. 34, 677 P.2d 1070, 1984 N.M. App. LEXIS 611 (N.M. Ct. App. 1984).

Appeals court upheld decision of a trial court judge who balanced the best interests of the minor children and the policy of protecting parental rights in denying maternal grandparents’ adoption petition since they had prevented parent-child contact; former 40-7-4K, 1953 Comp. (now 32A-4-29L and 32A-5-16H NMSA 1978) provided that statutory requisites for termination of parental rights had to be proven by clear and convincing evidence. In re Adoption of Doe, 1984-NMCA-005, 101 N.M. 34, 677 P.2d 1070, 1984 N.M. App. LEXIS 611 (N.M. Ct. App. 1984).

      Counsel.

At the hearing regarding whether to terminate the father’s parental rights, the father did not show in the motion for relief from judgment that he filed under Rule 1-060(B)(6) NMRA and the motion for a stay pending the resolution of his appeal that he did not receive effective assistance of counsel where, not having the daughters examined for physical signs of sexual abuse and not having the father take a polygraph test was not prejudicial and was not ineffective assistance of counsel under the standard that was used in criminal cases due to the strong evidence of guilt in the form of the father’s conviction for sexually abusing the daughters and his stipulation in an earlier abuse and neglect proceeding that he had sexually abused them. In re Termination of Parental Rights of James W.H., 1993-NMCA-028, 115 N.M. 256, 849 P.2d 1079, 1993 N.M. App. LEXIS 22 (N.M. Ct. App.), cert. denied, 115 N.M. 545, 854 P.2d 872, 1993 N.M. LEXIS 179 (N.M. 1993).

      Custody.

      Dismissal.

In an action to terminate parental rights, dismissal was not warranted by reason of the fact that the termination hearing was not held within 60 days of service of the motion on the interested parties, as required by 32A-4-29H NMSA 1978. State ex rel. Children, Youth & Families Dept. v. Anne McD. (In re Megan L.), 2000-NMCA-020, 128 N.M. 618, 995 P.2d 1060, 2000 N.M. App. LEXIS 11 (N.M. Ct. App. 2000).

      Evidence.

Evidence of abuse and neglect under 32A-4-2B NMSA 1978, which included an injury to a child and more incidents of domestic violence thereafter, met the higher standard of proof set forth in Subsection I of this section and 25 U.S.C.S. § 1912(f) for termination of parental rights in Indian Child Welfare Act cases. State ex rel. Children Youth & Families Dep't v. Arthur C., 2011-NMCA-022, 149 N.M. 472, 251 P.3d 729, 2011 N.M. App. LEXIS 4 (N.M. Ct. App. 2011).

Under 32A-4-29J NMSA 1978 the inability of a mother, who was diagnosed as having borderline personality disorder and borderline intellectual function resulting from cognitive difficulties, neurological soft signs, and seizure activity, to learn to provide the care or control necessary for her children’s well-being is clear and convincing evidence of neglect. State ex rel. Human Servs. Dep't v. Penny J., 1994-NMCA-143, 119 N.M. 328, 890 P.2d 389, 1994 N.M. App. LEXIS 134 (N.M. Ct. App.), cert. denied, 119 N.M. 20, 888 P.2d 466, 1994 N.M. LEXIS 449 (N.M. 1994).

           —Insufficient.

District court improperly terminated a father’s parental rights, where the social workers agreed that the father was motivated to comply with the directives of the Children, Youth & Families Department, and made some steps to improve his parenting skills, and the problem was mainly with the mother, because the record did not contain evidence that the district court could have properly found to be clear and convincing that the department made reasonable efforts to help father terminate his relationship with mother so he could become an adequate parent. State ex rel. Children, Youth & Families Dep't v. Joseph M., 2006-NMCA-029, 139 N.M. 137, 130 P.3d 198, 2006 N.M. App. LEXIS 6 (N.M. Ct. App. 2006).

           —Sufficient.

      Findings.

      Nature of hearing.

According to 32A-4-25B NMSA 1978, judicial reviews are held to assess the New Mexico Children, Youth and Families Department’s implementation of a treatment plan and a parent’s progress and compliance with it; such hearings do not conform to the constraints of a usual adversarial hearing, as cross-examination is not conducted and the rules of evidence do not apply. No such exceptions are found in the guiding authority for the conduct of termination hearings; termination hearings are more formal and comply with the rules of court because of the weighty issue —  final termination of parental rights — that is being considered at them. State ex rel. Children, Youth & Families Dep't v. Erika M. (In re R.C.), 1999-NMCA-036, 126 N.M. 760, 975 P.2d 373, 1999 N.M. App. LEXIS 12 (N.M. Ct. App. 1999).

      Practice and procedure.

32A-4-29H NMSA 1978 did not mandate a dismissal of termination proceedings on the basis that a hearing was not held within 60 days. State ex rel. Children, Youth & Families Dept. v. Anne McD. (In re Megan L.), 2000-NMCA-020, 128 N.M. 618, 995 P.2d 1060, 2000 N.M. App. LEXIS 11 (N.M. Ct. App. 2000).

      Right to counsel.

Wife was not denied equal protection because she was unable to secure counsel; while termination of parental rights cases in New Mexico gave rise to the statutory provision of appointed counsel for indigent parents in those cases pursuant to 32A-4-29F NMSA 1978, a custody issue is not of the same fundamental nature as the potential loss of personal liberty or of access to one’s children because while a parent may be in jeopardy of losing some time with her children, she is not in danger of entirely losing her relationship with them. Thomas v. Thomas, 1999-NMCA-135, 128 N.M. 177, 991 P.2d 7, 1999 N.M. App. LEXIS 105 (N.M. Ct. App.), cert. denied, 128 N.M. 150, 990 P.2d 824, 1999 N.M. LEXIS 386 (N.M. 1999).

      Standard of proof.

Notwithstanding that the standard of proof in cases involving the termination of parental rights is clear and convincing evidence, a reviewing court will not reweigh the evidence on appeal nor assess the credibility of the witnesses but rather will view the evidence in a light most favorable to affirmance; the standard of review is therefore whether, viewing the evidence in a light most favorable to affirming the termination of parental rights, the trial court could properly determine that the clear and convincing standard was met. State ex rel. Children, Youth & Families Dept. v. Vanessa C., 2000-NMCA-025, 128 N.M. 701, 997 P.2d 833, 2000 N.M. App. LEXIS 13 (N.M. Ct. App.), cert. denied, 128 N.M. 690, 997 P.2d 822, 2000 N.M. LEXIS 119 (N.M. 2000).

Standard of proof in cases involving the termination of parental rights is clear and convincing evidence. State ex rel. Children, Youth & Families Dept. v. Vanessa C., 2000-NMCA-025, 128 N.M. 701, 997 P.2d 833, 2000 N.M. App. LEXIS 13 (N.M. Ct. App.), cert. denied, 128 N.M. 690, 997 P.2d 822, 2000 N.M. LEXIS 119 (N.M. 2000).

      Standing.

Research References and Practice Aids

      New Mexico Law Review.

Note: Family Law-New Mexico Expands Due Process Rights Of Parents In Termination Of Parental Rights: In Re Ruth Anne E., Patricia Fletcher Schroeder, 31 N.M. L. Rev. 439 (2001).